2012.09.07

2011 (A) 670

Keishu Vol. 66, No. 9

Judgment concerning the admissibility of the evidence of the previous conviction to be used as evidence to prove that the accused committed the present crime

Case charged for breaking into a residence, theft, and arson of an inhabited building

Judgment of the Second Petty Bench, quashed and remanded

Tokyo High Court, Judgment of March 29, 2011

1. The evidence of the previous conviction is admissible as evidence of the crime charged in the present case only when it has natural relevance to the present crime and also when it seems unlikely that with respect to the fact to be proven by the evidence of the previous conviction, any error in fact finding will be made due to an unsubstantiated personality assessment. If the evidence of the previous conviction is to be used to prove that the accused committed the crime charged in the present case, it can be admitted as evidence of the present crime only when the fact of the crime of the previous conviction has distinctive characteristics and is similar to a considerable degree to the fact of the present crime, and, accordingly, the evidence of the previous conviction independently brings about a reasonable presumption that the previous crime and the present crime were committed by the same person.

2. If the evidence of the previous conviction of the accused for arson of inhabited buildings, etc. is used to prove that the accused is the person who committed arson of the inhabited building charged in the present case in such circumstances where the fact of the crime of the previous conviction cannot be regarded as being distinctively characteristic and the points of similarity between the fact of the previous crime and the fact of the present crime do not have very strong power to suggest that both crimes were committed by the same person, such use of the evidence of the previous conviction is equal to making a personality assessment of the accused that he/she has a propensity for committing arson and drawing from such assessment an unreasonable inference that the accused committed the present crime, which is impermissible.

(Concerning 1 and 2) Articles 317 and 379 of the Code of Criminal Procedure
Articles 317
Facts shall be found on the basis of evidence.

Articles 379
Other than the cases set forth in the provisions of the preceding two articles, when an appeal to the court of second instance has been made on the grounds that there was a violation of laws and regulations in the court proceedings and it is clear that that violation has affected the judgment, facts which appear in the case records and evidence examined by the court of first instance which are sufficient to show that there was a violation of laws and regulations which would clearly affect the judgment shall be cited in the statement of the reasons for appeal.

The judgment in prior instance is quashed.
The case is remanded to the Tokyo High Court.

Among the reasons for final appeal argued by the defense counsel, TAKANO Takashi, the reason alleging violation of a judicial precedent is irrelevant to this case because the judicial precedent cited in his arguments addressed a different type of facts, and the rest, including the reason alleging violation of the Constitution, are in effect assertions of unappealable violation of laws and regulations, and thus none of these reasons for final appeal can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
Having examined the case by this court's authority based on the arguments, however, we have reached a conclusion that the judgment in prior instance should inevitably be quashed under Article 411, item (i) of the Code of Criminal Procedure, on the following grounds.
1. According to the findings of the judgment in prior instance and the case records, the backgrounds of this suit are as follows.
(1) The charged facts of this case consist of the following crimes: (i) the crimes of breaking into a residence, theft, and arson of an inhabited building wherein, "on September 8, 2009, from around 6:30 a.m. to 11:50 a.m., with an intent to steal money or other property, the accused broke into D's residence in Room C of Apartment B located in Katsushika-ku, Tokyo, by breaking the glass door on the veranda and releasing the crescent lock, and at this place, 1) the accused stole 1,000 yen in cash and a cup of instant noodles (100 yen in market price), and 2) in an attempt to set fire to Apartment B (a two-story, galvanized iron-roofed wooden building, with a total floor area of 115.67 square meters) which was actually used by D and another person as dwellings, the accused spread the kerosene contained in the oil heater that was situated in Room C of Apartment B onto the carpet placed on the floor of the room, and started a fire in some way and caused the fire to spread onto the floor, etc. of the room, thereby having burnt part of Room C of Apartment B which a person actually used as a dwelling (the burnt area: about 1.1 square meters)" (these crimes shall hereinafter be referred to as the "Breaking into a Residence," "Theft," and "Arson," respectively); and (ii) the crimes of breaking into a residence and theft in Kushiro City, Hokkaido (hereinafter referred to as the "Kushiro Case").
(2) During the pretrial conference procedure before the court of first instance, the accused did not contest his/her charge of the Breaking into a Residence and the Theft as well as the Kushiro Case, but with regard to the Arson, the accused argued that he/she would admit that someone had broken into Room C of Apartment B and set fire to it but that was not him/her.
(3) The accused was previously convicted of crimes, including commission of theft in 15 cases during the period from April 7, 1991, to May 10, 1992, and arson of inhabited buildings in 11 cases during the period from March 29 to June 13, 1992 (including attempt of arson; hereinafter referred to as the "previous arson cases"), and was sentenced to imprisonment with work for eight months and imprisonment with work for 15 years (for all previous arson cases) on April 13, 1994.
During the pretrial conference procedure, the public prosecutor alleged that the accused committed the Arson based on the same motive as that of the previous arson cases, that is, setting a fire in anger for having attempted to steal but failing to obtain money or other property as desired, and that both the previous arson cases and the Arson were committed by unique means or methods, and in order to establish this fact, the public prosecutor requested examination of a certified copy of the judgment document concerning the previous conviction (hereinafter referred to as the "certified copy of the previous judgment document"), 15 certified copies of records of statements of the accused concerning the previous arson cases which had been prepared in the investigation relating to the previous conviction, and a copy of records of statements of the accused concerning the motive, etc. of the previous arson cases which had been prepared in the investigation of the present case (hereinafter collectively referred to as the "Evidence of the Previous Conviction"), as well as examination of a police officer as a witness to prove the circumstances of the scene of the Arson and the unique nature, etc. of the commission of this crime.
The court of first instance admitted the certified copy of the previous judgment document as evidence exclusively for the purpose of proving the circumstances of the crime, but rejected all of the Evidence of the Previous Conviction due to its "irrelevance" to this case as evidence to prove the crime of the Arson, and also rejected the examination of the police officer as a witness due to the "lack of necessity.".
On the grounds that there remained a reasonable doubt for finding the accused to have committed the Arson, the judgment in first instance convicted the accused only with regard to the Breaking into a Residence, and the Theft, and the Kushiro Case.
(4) The public prosecutor appealed against said judgment. As the reasons for appeal, the public prosecutor stated that the court of first instance rejected the Evidence of the Previous Conviction and the examination of the police officer as a witness although they were relevant to this case as evidence to prove the crime of the Arson and it was necessary to examine the police officer, and that such measure taken by the court of first instance constitutes violation of the laws and regulations concerning court proceedings, and the court’s having not found the accused to have committed the Arson as a result of such measure constitutes an error in fact finding.
The court of prior instance determined that the measure taken by the court of first instance violated the laws and regulations concerning court proceedings and such violation apparently affected the judgment in that, among the Evidence of the Previous Conviction, (i) the court rejected the request for examination of the certified copy of the previous judgment document, and (ii) the court rejected all of the 15 certified copies of records of statements of the accused concerning the previous arson cases which had been prepared in the investigation relating to the previous conviction, and a copy of records of statements of the accused concerning the motive, etc. of the previous arson cases which had been prepared in the investigation of the present case, without identifying which parts of these articles were relevant to the Arson, and as a result, the judgment in prior instance quashed the judgment in first instance and remanded the case to the Tokyo High Court.

2. The summary of the reasons for the judgment in prior instance is as follows.
The motive of the accused for committing the 11 previous arson cases was to resolve his/her anger for having attempted to steal but failing to obtain money or other property as desired. Among the 11 cases, the accused set fire to the rooms that he/she had broken into in ten cases and also set fire to the house that he/she attempted to break into in one case, and in seven cases, the accused spread the kerosene contained in the heaters situated around the scenes of the crimes. Thus, it is found that the accused had a fixed tendency to behave in such a characteristic manner as described above, in terms of the circumstances leading to the commission of arson as well as the means and method of committing arson. The accused admitted that he/she had broken into the room which was the scene of the Arson at a time around when the Arson took place and then had committed theft in that room. It is presumed that the money and other property that the accused stole was not satisfactory to him/her, which suggests that the accused was in the circumstances leading him/her to commit arson as in the previous arson cases. In addition, between the Arson and the previous arson cases, there was something in common in terms of the means and method of committing the crime and they seem to be similar in characteristics. Thus, the previous arson cases are relevant as evidence to prove that the accused committed the Arson. Consequently, all of the articles among the Evidence of the Previous Conviction pertaining to these points, that is, the certified copy of the previous judgment document, as well as the 15 certified copies of records of statements of the accused concerning the previous arson cases which had been prepared in the investigation relating to the previous conviction and the copy of records of statements of the accused concerning the motive, etc. of the previous arson cases which had been prepared in the investigation of the present case, to the extent of the parts pertaining to the circumstances leading to the commission of arson as well as the means and method of committing arson that were similar in characteristics to the Arson, are relevant to the Arson and should have been admitted as evidence. Therefore, the measure taken by the court of first instance was illegal in that the court rejected all of the Evidence of the Previous Conviction without conducting examination in such a manner as to identify which parts of the abovementioned records of statements were relevant to the Arson. In the present case where it is found that the accused broke into the room which was the scene of the Arson at a time around when the Arson took place and then committed theft, this illegal measure violates the laws and regulations concerning court proceedings and such violation apparently affected the judgment.

3. However, we cannot affirm the determination of the court of prior instance, on the following grounds.
(1) A person's previous conviction is a kind of fact, and evidence of the previous conviction generally has a value as evidence (natural relevance) with regard to the fact of the crime in various ways. On the other hand, the previous conviction, and in particular, the one relating to the same type of crime, tends to lead to an unsubstantiated personality assessment of the accused, such that he/she has a propensity for crime, and therefore it has the risk of causing an error in fact finding. Furthermore, in order to avoid such a risk and limit the probative value of the previous conviction of the same type of crime to the extent of a reasonable inference, the parties concerned would have to prepare and submit allegations and defense while taking into account the details of the previous conviction, and this would make the points at issue disperse along with the investigation on the previous conviction. Consequently, whether or not the evidence of the previous conviction is admissible as evidence in the present case is not determined solely on the basis of whether it has any value as evidence, or in other words, whether it has natural relevance to the present case, but it is permissible to admit the evidence of the previous conviction as evidence in the present case only when it seems unlikely that with respect to the fact to be proven by the evidence of the previous conviction, any error in fact finding will be made due to an unsubstantiated personality assessment. If the evidence of the previous conviction is to be used to prove that the accused committed the crime in question, as it happened in this case, it can be admitted as evidence in the present case only when the fact of the crime of the previous conviction has distinctive characteristics and is similar to a considerable degree to the fact of the crime charged in the present case, and accordingly the evidence of the previous conviction independently brings about a reasonable presumption that the previous crime and the present crime were committed by the same person.
As pointed out in the judgment in prior instance, it is found that the accused committed all of the 11 previous arson cases in order to resolve his/her anger for having attempted to steal but failing to obtain money or other property as desired, and that the accused set fire to the rooms that he/she had broken into in ten cases and also set fire to the house that he/she attempted to break into in one case, by spreading kerosene in all of these cases. Meanwhile, the Arson was committed by spreading the kerosene contained in the oil heater onto the carpet within the room and setting it on fire. The court of prior instance held that according to these facts as well as the fact that the accused admitted to having broken into the scene of the Arson within five hours and twenty minutes after the Arson took place, at the latest, and to having stolen two 500-yen coins and a cup of instant noodles, it is possible to presume that the accused, who was placed in the same circumstances as the abovementioned previous arson cases, came to intend to set a fire based on the same motive and committed the Arson by the means and methods as described above, and therefore the previous arson cases are found to be sufficiently relevant to the present case. However, breaking into a residence with an intent to steal and setting a fire due to the failure to obtain money or other property as expected is not particularly characteristic as a motive for committing arson. Nor is the mode of setting the fire?spreading the kerosene contained in the oil heater situated in the room that the person has broken into?very unique. Thus, these points of similarity between the Arson and the previous arson cases do not have very strong power to suggest that the Arson was committed by the accused.
As mentioned above, the court of prior instance held that the accused had a fixed tendency to behave as he/she did in the previous arson cases in terms of the circumstances leading to the commission of arson after stealing as well as the mode of committing arson. Although it is not very clear what kind of conditions the court of prior instance meant to describe by finding that the accused had such a fixed tendency, it seems that the court of prior instance intended to describe more than just the strong similarity between the previous arson cases and the Arson, that is, to describe that the tendency to commit arson has become a habit of the accused or has become rooted in the nature of the accused so firmly that he/she would not be able to fight it, and to eventually suggest the possibility to presume that both the previous arson cases and the Arson were committed by the accused. However, it is obvious that such a finding cannot be made only on the basis of the fact that the accused had repeatedly committed arson, and also in light of the facts mentioned below, the accused cannot be found to have such a strong propensity for crime, and therefore, the finding made by the court of prior instance can be regarded as nothing other than a finding based on an unsubstantiated personality assessment.
The previous arson cases were committed 17 years before the Arson, including the period during which the accused was serving his/her term, and it is questionable to presume that the accused maintained the same propensity for crime that he had had when committing the previous cases. In addition, the accused submitted a report that he had committed theft in 31 cases (including attempt of theft; the same shall apply hereinafter) within about a one-month period around the time of the Arson. Although this report described all of these cases in specific terms, the accused has not been prosecuted for any of these cases. Moreover, in many of these cases, the accused seems to have failed to obtain sufficient money or other property, but it is not found that arson took place at a time and place around when and where the accused committed theft. Thus, it is difficult to construe that the accused's propensity for committing arson came to surface only in the present case.
(2) As mentioned above, the accused committed theft at the scene of the Arson at a time around when the Arson took place but failed to obtain sufficient money or other property, and in this respect, the accused was in circumstances similar to the previous arson cases and similarity can also be found in terms of the mode of committing arson. However, using the Evidence of the Previous Conviction to prove that the accused committed the Arson is, in the end, equal to making a personality assessment of the accused that he/she has a propensity for committing arson based on the fact that he/she had committed the previous arson cases, and drawing from such assessment an unreasonable inference that the accused committed the Arson as well. This way of proving the crime is impermissible.
Consequently, the measure taken by the court of first instance is justifiable in that it rejected the request for examination of all of the Evidence of the Previous Conviction submitted to prove the fact of the Arson, and the determination of the court of prior instance to the effect that this measure violated the laws and regulations concerning court proceedings and such violation apparently affected the judgment is illegal due to an error in interpreting Article 379 of the Code of Criminal Procedure. Such illegality apparently affects the judgment, and the judgment in prior instance would amount to a considerable injustice if it were not quashed.

Therefore, we quash the judgment in prior instance according to Article 414, item (i) of the Code of Criminal Procedure and remand the case to the Tokyo High Court, which is the court of prior instance, according to the main clause of Article 413 of said Code. The judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Public Prosecutors IWAHASHI Yoshiaki and INAGAWA Tatsuya attended the trial.

Justice TAKESAKI Hironobu
Justice TAKEUCHI Yukio
Justice SUDO Masahiko
Justice CHIBA Katsumi